Guptas’ bid to testify overseas ‘is absurd’
● Family appears to want best of both worlds, suggests judge
Enabling the Guptas to testify from overseas would inevitably validate their criticism of SA law enforcement as unreliable and incompetent.
Arguing against a request from the Guptas to testify in the commission of inquiry into state capture from Dubai via video link, advocate Azhar Bham SC – representing former government communications head Themba Maseko – labelled their plea absurd.
“They want you to categorise the law enforcement agencies, and by extension the court system, as unreliable, incompetent and whatever unfortunate words were used,” Bham told commission chair deputy chief justice Raymond Zondo.
“The moment you do that, you might as well give up the commission now, because you can never refer matters that require further action to those very law enforcement agencies. “It becomes absurd.” Zondo reserved judgment on the Guptas’ application after they made it clear they will only give evidence outside of SA, by video link or through the inquiry travelling to them, as they mistrust the Hawks.
His ruling will determine whether the family continues to participate in the inquiry – and if so, how.
Gupta lawyer advocate Mike Hellens SC argued that if Zondo ruled against his clients, claims made against them by Maseko, former deputy finance minister Mcebisi Jonas and exANC MP Vytjie Mentor would be absent from the inquiry’s evidence and findings.
Zondo has, however, repeatedly questioned whether the Guptas – whose patriarch Ajay has been defined as a fugitive from justice by the Hawks – have any lawful reason to avoid giving evidence in SA, and contended that they are willing to participate in his inquiry only under their own terms.
“One is bound to ask the question: can you, on the one hand, run away or flee from a legal system and its institutions, but at the same time, want the benefits that legal system confers on those that participate in it?” he said.
“Can you say, on the one hand, ‘I don’t like this system’ for whatever reason and you flee, but then you say ‘but actually it’s got some benefits , it allows cross-examination, I want to get that benefit’.”
Former president Jacob Zuma’s son, Duduzane, a close associate of the Gupta family, has also asked to cross-examine Jonas about his claims that Duduzane set up a meeting at which a Gupta brother tried to bribe Jonas into taking the position of finance minister.
He does not want to testify about Jonas’s claims, because he has been charged with corruption in relation to them. Zondo was unimpressed. “Why should there be some people who don’t seem to want to let what happens to everyone happen to themselves as well, subject themselves to the same rules as everybody in the country are subjected to?” he asked Duduzane’s advocate, Dawie Joubert.
Zondo’s concerns have not only been echoed by lawyers representing state capture witnesses Jonas, Maseko and Mentor, but the inquiry’s legal team leader, Vincent Maleka.
Maleka argued on Thursday that the Guptas were attempting to use the inquiry to proclaim their innocence and urged Zondo to dismiss their applications to cross-examine Jonas, Mentor and Maseko.
He slammed the brothers’ promise to testify at the commission into state capture from overseas as “worth nothing”.
“They simply want to use the commission processes to proclaim their innocence.
“The type of undertaking ... by the brothers is not worth the pain because they may wake up and decide they are not going to participate in the commission,” Maleka said.
He also said there were cost implications to send the commission’s legal team abroad, and as things stood, financial resources were already scarce.
Zondo agreed and said it would be a huge operation.
Hellens, however, sought to counter these arguments by denying Maleka’s assertions that his clients’ responses to the evidence against them was based on “bald denials”.
Hellens says the Guptas have substantive responses to the claims made against them, and must be given the chance to provide this evidence.
Zondo said he hoped to rule on the Guptas’ and Duduzane’s applications next week.